Haryana

Kaithal

76/20

Jitender Kumar - Complainant(s)

Versus

IFFCO Tokkio Gen Insurance Co - Opp.Party(s)

Sh.Vivek Berwal

09 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 76 of 2020.

                                                               Date of institution:    12.02.2020.

                                                               Date of decision:       09.01.2024.

 

Jitender Kumar s/o Shri Jawahar Lal, r/o village Chandlana, Tehsil Dhand, District Kaithal, through Shri Rajiv Kamboj (Power of attorney holder), r/o village Chandlana, Tehsil Dhand, District Kaithal.

                                                                                      …Complainant.

                                                   Versus

 

1. IFFCO Tokio General Insurance Co. Ltd., through Managing Director, IFFCO Sadan, C-1, District Center, Saket, New Delhi-110017.
2. IFFCO Tokio General Insurance Co. Ltd., through its Authorized Person, near I.G. School, Dhand Road, Kaithal.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri Vivek Berwal, Advocate for the complainant.   

                   Shri Arvind Khurania, Advocate for the Opposite Parties.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

        Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), against the OPs.

2.                It is alleged by the complainant that the complainant is permanent resident of VPO Chandlana, District Kaithal and is staying in a rented accommodation at Ashok Vihar, New Delhi along with his brother Rajiv Kamboj and the present complaint has been filed by the complainant through his attorney Rajiv Kamboj, who is duly authorized by him vide power of attorney dated 24.12.2019 in regard thereto. That he had purchased a second  hand Hyundai Verna Car bearing Registration No.HR-31H-9898 from one Raj Kumar in the month of October 2018 and after necessary formalities applied for transfer of registration of car in his named with the office of Regional Transport Office, Kaithal. The said car was transferred in his name and registration certificate was sent to him by the said office by speed post, which was received by him on 14.11.2018. The said car was duly insured with OPs vide Policy No.M-2351479 (1TDGJKYE) valid from 19.08.2018 to 18.08.2019 and immediately after receiving the RC of the car, on the very same day i.e. 14.11.2018, asked his brother to inform the OPs about the transfer of ownership of said car in his name, upon which, his brother Rajiv Kamboj itself called the toll free customer care number 18001035199 of OPs and informed about the change of the registration certificate of the car in the name of complainant and on their demand, emailed the required documents. On 20.11.2018, his brother received an email from OPs saying that inspection of the car is required before endorsement and further asked to provide a mobile number so that they can send some link for self inspection to the complainant, but no link whatsoever was sent by OPs on the number provided at all. ON 02.12.2018, his brother again called the customer care of OPs and apprised the OPs that he is not getting any link for inspection by mobile application from OPs and requested to send the link. Surprisingly, his brother again received an email dated 05.12.2018 asking for the inspection by the OPs without sending any link for any App. The OPs neither sent the link to the mobile number provided nor took any stops to do the inspection by sending any of its executive. That on the intervening night of 12.02.2019 and 13.02.2019, while the car was stolen from the front of his house i.e. B-1/129, 2^nd Floor, Ashok Vihar, New Delhi and in this regard, his brother immediately informed the police and lodged a FIR No.005318/2019 e-Police Station, Ashok Vihar, New Delhi. The police made efforts to trace the said car but could not trace the same and have filed Untraced Report before the Court of Ms. Ekta Gauba, Ld. M.M. Rohini Court, New Delhi, which was accepted by the court vide order dated 26.03.2019. He raised a claim with OPs along with necessary documents, which was registered vide claim No.37848629, but OPs sent a letter dated 16.05.2019 saying that complainant has not done the pre-inspection of the car. It is submitted that the car was transferred in his name on 14.11.2018 and factum of change of ownership of car was duly intimated to the OPs on the same day. He also sent copies of RC and insurance policy by email on 14.11.2018 to OPs and complied with the GR-17 of the Motor Vehicle Tariff Rules, but the OPs have failed to transfer the policy in his name and now trying to take the benefit of their wrong. The above act of OPs of repudiation of his claim, amounts to gross deficiency in service, on their part, due to which, he suffered physical and mental agony as well as financial loss, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, OPs No.1 & 2 appeared before this Commission and filed written statement, stating therein that the claim of complainant is not maintainable since the insured of policy i.e. Raj Kumar has admittedly sold the vehicle as such, there is no insurable interest of Raj Kumar. Whereas, there is no contract of insurance between complainant Jitender and OPs, since the complainant failed to get the policy transferred in his name. Furthermore, admittedly the vehicle in question was sold on October 2018, whereas, intimation to the OPs was given on 14.11.2018, which ipso facto also amounts to violation of GR17, wherein, the complainant as per law, was immediately required to submit the sale agreement proof along with fresh proposal form duly filled and signed. However, in the present case, such documents were not submitted by the complainant at all and wilfully and deliberately waited for the transfer of registration certificate thereby causing substantial period of delay. That Mr. Raj Kumar had availed the benefits of 25% NCB which in any case in the endorsement policy (issue in question) was ought to be also paid by the complainant at the; time of inspection of the vehicle, which he has miserably failed to do so in addition to non-inspection of the vehicle and prayed for dismissal the present complaint.          

4.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 & Annexure-C26.

5.                On the other hand, OPs No.1 & 2, in their evidence tendered affidavit Ex.RW1/A and documents Annexure R-1 to Annexure R-8.

6.                We have heard the learned counsel for the parties and perused the record carefully.

7.                Learned counsel for the complainant has argued that the complainant is permanent resident of VPO Chandlana, District Kaithal and is staying in a rented accommodation at Ashok Vihar, New Delhi along with his brother Rajiv Kamboj and the present complaint has been filed by the complainant through his attorney Rajiv Kamboj, who is duly authorized by him vide power of attorney dated 24.12.2019 in regard thereto. He further argued that the complainant had purchased a second hand Hyundai Verna Car bearing Registration No.HR-31H-9898 from one Raj Kumar in the month of October 2018 and after necessary formalities applied for transfer of registration of car in his name with the office of Regional Transport Office, Kaithal and the said car was transferred in his name and registration certificate was sent to the complainant by the said office by speed post, which was received by him on 14.11.2018. He further argued that the said car was duly insured with OPs vide Policy No.M-2351479 (1TDGJKYE) valid from 19.08.2018 to 18.08.2019 and immediately after receiving the RC of the car, on the very same day i.e. 14.11.2018, his brother Rajiv Kamboj itself called the toll free customer care number 18001035199 of OPs and informed about the change of the registration certificate of the car in the name of complainant and on their demand, emailed the required documents. He further argued that on 20.11.2018, brother of complainant received an email from OPs saying that inspection of the car is required before endorsement and further asked to provide a mobile number so that they can send some link for self inspection to the complainant, but no link whatsoever was sent by OPs on the number provided at all. He further argued that on 02.12.2018, brother of complainant again called the customer care of OPs and apprised the OPs that he is not getting any link for inspection by mobile application from OPs and requested to send the link, but the OPs neither sent the link to the mobile number provided nor took any stops to do the inspection by sending any of its executive. He further argued that on the intervening night of 12.02.2019 and 13.02.2019, while the car was stolen from the front of the house of complainant i.e. B-1/129, 2^nd Floor, Ashok Vihar, New Delhi and in this regard, his brother immediately informed the police and lodged a FIR No.005318/2019 e-Police Station, Ashok Vihar, New Delhi. He further argued that the police made efforts to trace the said car but could not trace the same and have filed Untraced Report before the Court of Ms. Ekta Gauba, Ld. M.M. Rohini Court, New Delhi, which was accepted by the court vide order dated 26.03.2019. He further argued that the complainant raised a claim with OPs along with necessary documents, which was registered vide claim No.37848629, but OPs sent a letter dated 16.05.2019 saying that complainant has not done the pre-inspection of the car. He further argued that the above act of OPs of repudiation of his claim, amounts to gross deficiency in service, on their part.

8.                On the other hand, learned counsel for OPs No.1 & 2 has argued that the claim of complainant is not maintainable since the insured of policy i.e. Raj Kumar has admittedly sold the vehicle as such, there is no insurable interest of Raj Kumar, whereas, there is no contract of insurance between complainant Jitender and OPs, since the complainant failed to get the policy transferred in his name. He further argued that furthermore, admittedly the vehicle in question was sold on October 2018, whereas, intimation to the OPs was given on 14.11.2018, which ipso facto also amounts to violation of GR17, wherein, the complainant as per law, was immediately required to submit the sale agreement proof along with fresh proposal form duly filled and signed. However, in the present case, such documents were not submitted by the complainant at all and wilfully and deliberately waited for the transfer of registration certificate thereby causing substantial period of delay. He further argued that Raj Kumar had availed the benefits of 25% NCB which in any case in the endorsement policy (issue in question) was ought to be also paid by the complainant at the; time of inspection of the vehicle, which he has miserably failed to do so in addition to non-inspection of the vehicle and prayed for dismissal the present complaint.  

9.                Undisputedly, initially, the car in question bearing Registration No.HR31H-9898 was registered in the name of one Raj Kumar s/o Shri Mangal Saini, resident of Jind, vide Registration Certificate Annexure C-2 and the same was insured from the OPs, vide policy No.1-TDGJKYE valid for the period from 19.08.2018 to 18.08.2019 Annexure C-5/R-1. The complainant namely Jitender Kumar purchased the said car from said Raj Kumar and got transferred its Registration Certificate in his name on 17.10.2018, as is evident from Registration Certificate Annexure C-3 and document Annexure C-4. The said vehicle was stolen on the intervening night of 12.02.2019 and 13.02.2019 vide FIR Annexure C-6 and when the police could not trace the car and filed Untraced Report before the Court concerned, which was accepted by the court vide order dated 26.03.2019 Annexure C-16. At the day of stolen, the car was duly insured with the OPs.

10.              The complainant applied for claim amount, with the OPs, who deputed his claim, vide letter dated 16.05.2019 Annexure C-7/R-7, on the specific ground that the complainant has not done the pre-inspection of the car in question nor transferred the insurance policy, in his name, within 14 days, from the date of transfer the car in question in his name.

11.              Now coming to first ground, taken by OPs, in their repudiation letter that the complainant has not done the pre-inspection of the car in question before the accident in question. In this regard, the complainant has alleged that the car was transferred in his name on 14.11.2018 and factum of change of ownership of car was duly intimated to the OPs on the same day by his brother Rajiv Kamboj, on their customer care toll free No.18001035199 and to prove the same, complainant produced call details of mobile number of his brother Rajiv Kamboj on the case file as Annexure C-19, wherein, at Page No.6 at Sr. No.5, it is shown that said Rajiv made calls on toll free number 18001035499 on 14.11.2018 at 16:08:17. The complainant further contended that his brother Rajiv Kamboj also sent copies of RC and insurance policy by email on 14.11.2018, to OPs and complied with the GR-17 of the Motor Vehicle Tariff Rules and produced copy of email of dated 14.11.2018 as Annexure C-20 and its attachment as Annexure C-21, on the case file. Complainant further produced copies of emails of different dates sent by his brother Rajiv Kamboj to the OPs regarding providing App link for inspection the vehicle in question. Meaning thereby, the complainant was continue in touch with the OPs for pre-inspection of his car from the date of registration of car in question in his name i.e. on 14.11.2018, so, this contention of OPs that the complainant has not done the pre-inspection of the car in question, has no force, because, the complainant is/was very much willing to get inspection of his car in question from the date of registration of his car in question from 14.11.2018 and sending the emails to the OPs, in this regard, time and again.

12.              Now coming to the other objection taken by the OPs in the repudiation letter that the complainant has not transferred the insurance policy, in his name, within 14 days, from the date of transfer the car in question in his name. It is well proved on the file that at the day of stolen of the car in question i.e. 12/13.02.2019, the registration certificate of car in question was transferred from Raj Kumar to Jitender i.e. complainant. As per Section 157(1) of the Motor Vehicle Act, 1988, “whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner”. Accordingly, instant policy benefits will also be automatically transferred from Raj Kumar to Jitender (complainant). In this regard, reliance can be made to the authority titled as Mallamma (Dead) by LRs Vs. National Insurance Co. Ltd. and others, Vol.CLXXV (2014-3), The Punjab Law Report, Page No.813 (SC), wherein, it has been held by the Hon’ble Supreme Court of India that Section 157 (1) – Whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner. According to Registration Certificate Annexure C-3 and Annexure C-4, the car in question was transferred in the name of Jitender (complainant) from Raj Kumar on 17.10.2018. So, there is an admitted transfer of ownership of the car of the complainant. As per Section 157 of MV Act, once an ownership of the vehicle is admittedly proved to have been transferred to Jitender (complainant), the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner, as it is the vehicle, which is insured with the company and not the owner. So the contention of the OPs that the car in question has not been transferred, in the name of the complainant, within 14 days, has no force.

13.              Keeping in view the case law, referred to above as well as facts and circumstances of the case, we are of the considered view that the OPs insurance company cannot avoid its liability, on the ground that the original owner has not transferred the insurance policy, in his name, after the transfer of the ownership/registration certificate. Therefore, OPs have wrongly repudiated the claim of the complainant, which amounts to gross deficiency, on the part of OPs.

14.              Now the question, which arises for consideration is what should be the quantum of indemnification? From the policy in question Annexure C-5, it is evident that the IDV of car in question was Rs.5,27,535/-, as such, OPs is liable to pay the said amount, to the complainant along with compensation and litigation expenses.

15.              In view of our above discussion, we accept the present complaint and direct the OPs to pay the sum insured of Rs.5,27,535/- along with compensation amount of Rs.10,000/- + litigation expenses of Rs.5,000/-, to the complainant, within a period of 45 days, from the date of preparation of certified copy of this order, failing which, the total award amount shall carry interest @6% simple per annum, from the date of this order, till its actual realization.

16.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:09.01.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

 

 

 

 

Typed by: Sham Kalra, Stenographer.